This situation is called “contested” because:
- Your spouse or domestic partner filed a response,
- The 2 of you do NOT have a written agreement about your divorce or legal separation, dividing your property and debt, child custody and visitation, and support issues.
The case can be contested because you do not agree on how to divide your property and your debt, or because you do not agree about custody and visitation, child support, or spousal/partner support. You may agree on some issues but not others. If this is the case, you can write up your agreement on the issues you worked out and leave the other issues for a judge to decide.
If you are in a contested case, you may want to try mediation to resolve your case yourselves and not leave the decision up to a judge. If you and your spouse or domestic partner can reach an agreement on all or at least some of the issues in your divorce or legal separation, you can save yourselves time and money, as well as the emotional stress of fighting over these issues in court.
In most courts, when there are issues you cannot resolve by agreement, one of you has to file and serve a form to set a trial date. Also, most courts require the parties to attend a settlement conference before the trial. Ask the court clerk what your next step should be and whether there are any special, local forms you need to fill out. Find the website, address, and telephone number of your local court. You can also ask your court’s family law facilitator or self-help center.
If you and your spouse or domestic partner want help to settle your case, ask the court clerk, family law facilitator, or self-help center at your local court if there are any mediation programs available.
The information we provide you on this Online Self-Help Center is very general and cannot provide you the level of detail and information you will need to handle your contested case. The steps to follow in contested cases vary a lot depending on the individual circumstances in your case.
ASKING FOR A SEPARATE TRIAL
Sometimes, a case is contested because the spouses or domestic partners cannot agree on ALL issues, though they may agree on some. When this happens, the parties can ask for a separate trial on the issues they cannot agree on so they can resolve those and then finalize the entire case. This is sometimes called “bifurcation” which means “to separate the legal issues in a case.”
Some issues, among others, that can be dealt with this way are:
- Permanent custody and visitation of the children,
- Date of separation of the parties,
- The validity of a prenuptial agreement, and
- Ending of the marital status (dissolving the marriage or legally separating).
Courts may allow separate trials because sometimes resolving this 1 issue can be the only thing that stands in the way of the rest of the case being decided. For example, the date 2 people separate can be very important because it can determine when property or debt stops belonging to both spouses or partners. Sometimes people argue about this date because it can mean whether a certain piece of property belongs to both of them or only to 1 of them. Having the judge make a decision about this date can then settle that issue, and then the arguments about whether something belongs to both or to just 1 would be resolved.
Asking for a separate trial is not easy and you have to convince the judge that he or she should grant it. You will need to file a Request for Order (Form FL-300) and attach a Request or Response to Request for Separate Trial (Family Law) (Form FL-315). You can use the Information Sheet for Request for Order (Form FL-300-INFO) for help filling out Form FL-300.
If your spouse or domestic partner has filed a motion for a separate trial, you can file a response by filling out and filing a Responsive Declaration to Request for Order (Form FL-320) and attaching the Request or Response to Request for Separate Trial (Family Law) (Form FL-315).
Requesting a separate trial is not easy and you have to convince the judge that he or she should grant it. Talk to a lawyer for advice on how to prepare your paperwork.
Asking for a separate trial on the issue of marital status
Sometimes, spouses or domestic partners want to move ahead with ending the marital status or domestic partnership while other issues remain to be resolved. When this happens, a party can ask for a “bifurcation” of marital/partnership status. This means that the court makes a decision on ending your marriage or domestic partnership while other issues remain open and to be decided.
Courts do not generally like to encourage this because they want cases to be decided as a whole and completely resolved. Also, sometimes when spouses or domestic partners get the divorce or separation, they do not have as much incentive to finish the rest of the case, so it can take longer. But if you have a really good reason for asking for a bifurcation, you may be able to get the divorce or separation while the rest of the issues are still unresolved.
To ask for a bifurcation, you have to ask the court for a separate and earlier trial on the issue of ending your marriage or domestic partnership. So for that reason, this request is called an “application for a separate trial.”
To ask for it, you will need to file a Request for Order (Form FL-300) and attach an Request or Response to Request for Separate Trial (Family Law) (Form FL-315). You can use the Information Sheet for Request for Order (Form FL-300-INFO) for help filling out Form FL-300. And talk to a lawyer for advice on how to prepare your paperwork.
If your spouse or domestic partner has filed a motion for a separate trial, you can file a response by filling out and filing aResponsive Declaration to Request for Order (Form FL-320) and attaching the Request or Response to Request for Separate Trial (Family Law) (Form FL-315).
COMPLETING THE FINAL DECLARATION OF DISCLOSURE
If you have a contested case and both of you do not waive your final declarations of disclosure, you will have to exchange your final declarations of disclosure.
In a contested case, you must exchange your final declaration of disclosure at least 45 days before your “first assigned trial date.”
If you both want to waive your final declarations of disclosure, you can use the Stipulation and Waiver of Final Declaration of Disclosure (Form FL-144). If you do not use this form, make sure your written agreement has very specific language about the waiver.
If you DO need to prepare a final declaration of disclosure, fill out:
- Declaration of Disclosure (Form FL-140), which is a cover sheet for your declaration of disclosure;
- Schedule of Assets and Debts (Form FL-142) or a Property Declaration (Form FL-160); and
- Income and Expense Declaration (Form FL-150).
- And, as part of the declaration of disclosure, you must also write, on separate sheets of paper:
- A statement explaining how you came up with your estimated value of all assets that are all or partly community property;
- A statement listing values of the assets and debts that you and your spouse or domestic partner may be liable for; and
- A list of your investment opportunities since you separated.
- These are not court forms; use regular sheets of paper and write your case name and case number at the top. Attach them to your Declaration of Disclosure (Form FL-140).
Once you have sent your disclosure forms to your spouse or domestic partner, you need to fill out and file with the court:
The Declaration Regarding Service of Declaration of Disclosure (Form FL-141), which tells the court you have sent your disclosure documents as required.
Preparing for Divorce:
- Part 1: Can you get divorced in California?
- Part 2: Collect These Documents
- Part 3: Download these forms, file them with the court, and have them served to your spouse
Here are some options depending on what happens after these 1st three steps:
- Option 1 – TRUE DEFAULT – Your spouse didn’t respond to your filing at all
- Option 2 – DEFAULT CASE – Your spouse did not respond but you have a written agreement on all issues
- Option 3 – UNCONTESTED DIVORCE – You and your spouse agree on everything
- Option 4 – CONTESTED DIVORCE – You and your spouse do not agree on everything
Mendes Weed, LLP offices are located in Walnut Creek and our skilled attorneys provide family, tax, business and trust law assistance for clients. For your convenience, we also have attorneys' offices in San Francisco and Sacramento by appointment only.
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